At stake in hearing: How many affordable houses N.J. must provide

Just how much affordable housing New Jersey must provide for in the decade ahead may hang in the balance Monday when an appeals panel convenes in Mount Holly's historic Olde Courthouse.

Three judges of the Appellate Division are to consider whether municipalities have a persisting obligation to zone for all the housing units that went unapproved between 1999 and 2015.

During that period, the state failed to devise a formula for calculating those obligations under the New Jersey Supreme Court's Mount Laurel decisions.

While market forces and government subsidies play an essential role in how many units actually get built, the panel's ruling could affect by many tens of thousands the number of affordable apartments and houses that towns must zone for by 2025.

A consortium of half the state's 565 municipalities insists that no obligation remains from the 16-year "gap period." Advocates for affordable housing insist the state's failure to arrive at a formula never erased that obligation.

"Never before in the history of Mount Laurel, even under the Christie administration, has such an extreme argument been acceptable," said Kevin Walsh, executive director of the Fair Share Housing Center.

Fair Share, an advocacy group with intervenor status in affordable-housing litigation, calculates that municipalities statewide must zone for 202,000 units by 2025. About half of those are a holdover, it says, from the gap period.

Econsult Solutions of Philadelphia, planning consultant to the consortium, has calculated the statewide need at as few as 37,000 new units.

Lawyers for Fair Share have called Econsult's methodology "weird." The consortium's lawyer has called Fair Share's numbers "pie in the sky." Both sides are to present oral arguments at Monday's hearing.

Mike Cerra, assistant executive director of the New Jersey League of Municipalities, last week said he anticipates that Appellate Judges Marie Lihotz, Douglas Fasciale, and William Nugent will issue a ruling within a week.

"And no matter what they decide," quipped Cerra, "one side is going to put out a news release, and the other's going to appeal to the Supreme Court."

The league is not a litigant in Monday's appeal, Cerra said, but is of the opinion that towns do not have outstanding gap obligations.

New Jersey has built about 80,000 housing units for low- and middle-income households since 1985, Walsh said.

Walsh, who serves as Fair Share's lead attorney, last week said he was "optimistic the court will rule in our favor, because the law is so clearly on our side."

In his May 21 brief, he asserts that "every relevant source of law" since the Fair Housing Act was enacted in 1985 "has recognized that municipalities may not escape the obligation to meet housing needs simply through the passage of time and municipal inaction."

Compelled by a series of state Supreme Court rulings involving Mount Laurel Township's then-exclusionary zoning policies, the act obliges all municipalities to provide for a "fair share" of their region's low- and middle-income housing needs.

Jeffrey R. Surenian, attorney for the consortium of 280 municipalities, said he is "confident" the Appellate Division will conclude the alleged gap obligation has no force.

Monday's hearing in Mount Holly relates to an appeal Surenian filed in March on behalf of Barnegat Township, one of his clients. Days earlier, Superior Court Judge Mark A. Troncone in Ocean County had ruled that Barnegat and other municipalities had housing obligations left over from the gap.

Troncone's was the first ruling on the gap question since the Supreme Court unanimously dissolved the dysfunctional Council on Affordable Housing (COAH) last year and ordered the 15 Superior Courts to oversee implementation of the Fair Housing Act.

The Appellate Division ruling likely will establish statewide precedent on the gap question unless the Supreme Court reverses it. The high court's instruction to the Appellate Division to hear Surenian's appeal by the June 30 suggests it is watching the case closely.

In his brief filed May 13, Surenian asserts that the "plain intent" of the Fair Housing Act was to create "reasonable" fair-share obligations, "not to overwhelm municipalities with the patently unachievable burdens currently advanced by developers and nonprofit organizations."

According to Surenian, Fair Share's calculation that municipalities must zone for 202,000 low-priced houses and apartments far exceeds all the new dwellings likely to be built across the state during the next 10 years. "It's like trying to pour water into a glass already full," he said in an interview.

In an economic analysis generated last year for the League of Municipalities, Nassau Capital Advisors L.L.C. of Princeton projected that inclusionary zoning would likely generate between 17,000 and 24,000 affordable housing units by 2025.

Walsh called those numbers "a wildly low projection of need," and faulted municipalities that "use all sorts of tricks to get their numbers as low as possible."

He conceded that market forces and dwindling government subsidies will ultimately determine how many units are actually created, but said it was still important to fight in the courts for high target numbers.

"Mount Laurel doesn't promise that they will be built," he said. "But it says government won't be the barrier to doing what's needed."

doreilly@phillynews.com

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